McGuire execution lawsuit called similar to failed cases

COLUMBUS — The family of murderer Dennis McGuire has sued the state of Ohio based on witnesses’ descriptions of his “cruel and inhumane death” during his execution last month, but the courts have dismissed similar claims from much longer executions.

U.S. District Court in Cincinnati three years ago threw out a lawsuit filed against the state by the Toledo family of Joseph Lewis Clark after his execution lasted nearly 90 minutes.

Witnesses heard him moan in pain as the execution team struggled to find useable veins through which drugs could flow, then struggled again when the one shunt they’d inserted failed.

In dismissing the Clark lawsuit, the court cited a ruling by the U.S. 6th Circuit Court of Appeals stating: “A prisoner cannot successfully challenge a method of execution merely by showing that the method may result in pain, either by accident or as an inescapable consequence of death, or that a slightly safer alternative is available.”

The Clark lawsuit contended he suffered cruel and unusual punishment in violation of the 8th Amendment of the U.S. Constitution and state law, making some of the same arguments given in the McGuire lawsuit. McGuire’s execution took about 25 minutes for a process that typically takes about 10 minutes.

This execution, however, was uncharted territory, the first in the nation involving a combination of two backup drugs used after the state’s first choice, the powerful single barbiturate pentobarbital, became unavailable because its European manufacturer objects to its use in executions.

“This is a different set of facts,” said the Clark family’s Toledo attorney, Alan Konop. “It’s a different process and, therefore, should be viewed separately.”

After failing to find a compounding pharmacy willing to duplicate its preferred drug, Ohio fell back on massive intravenous overdoses of the sedative midazolam and the painkiller hydromorphone.

Witnesses described McGuire, 53, gasping for air and making loud snorting sounds during the 25 minutes after the drugs began to flow.

“The cases are easily distinguishable,” said Jon Paul Rion, a Dayton attorney representing McGuire’s son and daughter. “In the Clark case, there was no request for injunctive relief or declaratory judgment, so the court was only looking at the procedure itself, not prospectively toward any other end. In our case, the focus of the … action is to assure no other individual suffers the way Mr. McGuire did.”

In addition to the state and the anonymous execution team, the lawsuit also names Hospira Inc., the Illinois maker of the two drugs used, as defendants. The firm previously stopped making the drug sodium thiopental, also previously used by Ohio, because it knew it was being used to carry out executions.

McGuire was convicted in the 1989 rape and murder of 22-year-old Joy Stewart, who was pregnant.

Clark’s May 2, 2006, execution lasted 86 minutes, at the time the longest in Ohio history and what the earlier lawsuit subsequently contended was the third longest in U.S. history.

Execution teams struggled to find useable veins in Clark, a long-time intravenous drug user before his arrest for the gas station robbery murder of David Manning, 23, in 1984.

The execution team broke from protocol, deciding to go with an IV shunt in one arm instead of the required two.

When that shunt failed, Clark surprised the team and witnesses by raising his head and protesting, “It don’t work.”

The execution was eventually completed, but the autopsy found 19 puncture wounds in Clark.

At the time, the state was using a three-drug protocol that first sedated the inmate, paralyzed his lungs, and then stopped his heart.

The protocol has been changed twice since then.

The length of Clark’s execution was eclipsed a year later when the execution of Christopher Newton, convicted of murdering a cellmate, took more than two hours — also because of problems finding useable veins.

In 2009, the execution of Rommell Broom was halted midstream by then Gov. Ted Strickland when the team again struggled for two hours to insert shunts. He remains on Ohio’s death row.